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Mikey’s Greatest Hits Episode 1

[ Original link at http://pastebin.com/J2njiPPZ ]

Since Mikey is trying to censor me by blocking my IP addresses, I’ve decided to start a new series of posts: Mikey’s Greatest Hits.

Yes, that’s right. The guy who mercilessly mocks others for foolishly and uselessly attempting to block things on the internet is engaging in a game of Whac-A-Mole against me. It’s Mikey, so you naturally expect such hypocrisy. And as Mikey well knows, such games of Whac-A-Mole are totally futile.

To celebrate Mikey's latest efforts to censor and to run away from those who challenge him, I bring you some of Mikey’s greatest moments. I’ll scour through the Techdirt database and pull out many fine examples of where Mikey got called out on his bullshit and then ran away with his tail between his legs. There's so many to choose from. This is going to be fun!

Nothing proves what a total fake and total coward Mikey is like the times he’s posted something stupid, gotten called out on it, attempted to plead his case in the comments, and then run from the debate once he realized he’s wrong. It's the standard total coward move from the Master of the Cowardly, Mikey Masnick.

Let's start with a recent favorite: Mikey claims that one of the crimes Kim Dotcom et al. are charged with is not even a real crime. And when called out, he changes his story and then runs away. Classic slimeball move from Mikey. But, yeah, Mikey isn’t a pirate apologist. No, not at all.

After Dotcom's ridiculous "White Paper" came out, Mikey published a puff piece defending his Pirate Hero. Therein, Mikey makes the extraordinary claim that one of the crimes Dotcom et al. are charged with isn't even a real crime:

<<<The main point, as we've discussed before in the context of other cases, is that the DOJ seems to have completely made up a legal theory of contributory copyright inducement. While there is such a thing in civil contexts, it's not there in criminal contexts.>>>

Dotcom made this same argument in his "White Paper," so of course Mikey latched onto it and ran with it on Techdirt. The claim is quite stupid and easily disproved, yet this is Techdirt, so that's the kind of stuff that gets published as the gospel truth.

But can Mikey actually defend this claim? Of course not.

In the comments, I corrected him:

<<<I really don't understand the argument. Aiding and abetting is a crime under 18 USC 2. Conspiracy is a crime under 18 USC 371. How is the government making anything up? If Dotcom aided and abetted others to infringe, he's liable as if he himself infringed. If Dotcom conspired with others who infringed, he's liable as if he himself infringed. While the Copyright Act may not provide for indirect liability in civil suits, and judges found such liability to exist as a matter of common law, Title 18 explicitly provides for such liability. Mike, can you explain how the DOJ is making this up when it's right there in Title 18? This isn't judges making it up. It's literally right there in Title 18. This argument is so silly, it hurts.>>>

So Mikey claims that there is no such thing as criminal infringement for a person that merely induces another to infringe. His reasoning is that even though there is such a thing in the civil law, where judges read it into copyright law, only those things explicitly mentioned in the U.S. Code can be crimes. Mikey claims that since there is no such thing in the U.S. Code, then there is no such thing in the criminal law.

The only problem with this argument is that there is such a thing explicitly provided for in the U.S. Code, and it's found in 18 USC 2. Read it for yourself: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." Source: http://www.law.cornell.edu/uscode/text/18/2

In other words, if you help someone commit a crime, you are treated as though you committed the crime yourself. And you know how easy it was to find this statute? Extraordinarily so, because it's the very statute the government is charging Dotcom et al. under. It's literally mentioned on the first page of the indictment.

You have to read Dotcom's "White Paper" closely, because therein he says there's no such thing as criminal inducement liability in THE COPYRIGHT ACT. That's true, it's not in the Copyright Act, which is found in Title 17. But it is found in Title 18. It's right there in Section 2. Just like it says on the first page of the indictment.

That inducing someone to commit criminal infringement is itself a crime has been pointed out to Mikey several times over the years. But he keeps repeating the lie.

Another AC jumps in and points out that Mike’s argument makes no sense:

<<<Yeah, Mike asserted this point before - that there's no criminal liability for "inducing" criminal copyright infringement. And still, it doesn't make sense to me. As the AC above points out, 18 USC Section 2 says those who aid, abet, or "induce" others to violate any of the criminal statutes in title 18 (which would include criminal infringement) is guilty as a principle. In other words, that the person can be held criminally liable as though he himself committed the violation. This is a much older and established part of US than the Grokster opinion. Mike says above that "supporters of the DOJ will argue that there is aiding and abetting, but the rules there are quite different." But one doesn't have to "support" the DOJ to read Section 2 and see that it criminalizes "inducing" someone else to commit a crime (as well as the more familiar "aiding" or "abetting" them). I have no idea what "different rules" Mike is talking about - he's never made that clear in the past. Certainly there are some differences between civil and criminal liability, such as the standards of proof, the requirements to show intent in criminal cases, etc. But those differences are illustrated in any criminal copyright case, of which there have been many over the years.

Mike, is there some distinction you have in mind? Because it just isn't making any sense.>>>

After I and the other AC point out how inducing someone to commit a crime is itself a crime as per 18 USC 2, Mikey finally responds. And unsurprisingly, he moves the goalposts:

<<<As Karl explained above, and as we've discussed in detail in the past: you have to show aiding and abetting *CRIMINAL* infringement. They may be able to show support for civil infringement, but that's different and doesn't qualify here.

Nowhere do the charges even attempt to show any specific *criminal* infringement.>>>

See what he did? He’s shifted from arguing there is no such thing in general as "contributory copyright inducement" to arguing that such a crime can't be proved in this case. So he's completely moved the goalposts. One second the argument is that the crime doesn't even exist, and the next minute the crime exists but just can't be proved with Dotcom and the Gang. Tricky stuff, but such is the norm when dealing with Mikey.

And notice the other thing that Mikey added, namely, that the DOJ hasn't alleged any “specific *criminal* infringement.” This is patently untrue, and easily disproved.

Count Four, found on page 72 of the superseding indictment, alleges specific criminal infringement by none other than the members of the Mega Conspiracy:

<<<On or about October 25, 2008, in the Eastern District of Virginia and elsewhere, the defendants, KIM DOTCOM, MEGAUPLOAD LIMITED, VESTOR LIMITED, FINN BATATO, JULIUS BENCKO, SVEN ECHTERNACH, MATHIAS ORTMANN, ANDRUS NOMM, and BRAMVAN DER KOLK did willfully, and for purposes of commercial advantage and private financial gain, infringe a copyright by distributing a work being prepared for commercial distribution in the United States, to wit, the copyrighted motion picture "Taken" (which would not be commercially distributed until on or about January 30,2009) by making it available on a computer network accessible to members of the public, when defendants knew, and should have known,that the work was intended for commercial distribution. (All in violation of Title 17, United States Code, Section 506(a)(1)(C) and Title 18, United States Code, Sections 2 & 2319(d)(2)).>>>

So the government is alleging that that the specific film "Taken" was criminally infringed upon by the Dotcom Gang. That's an allegation of “specific *criminal* infringement.”

In fact, I had already mentioned this earlier in the thread:

<<<Forgot to mention that the superseding indictment alleges direct infringement by one of the Mega crew:

On or about October 25, 2008, VAN DER KOLK uploaded an infringing copy of a copyrighted motion picture entitled "Taken 2008 DVDRipRepack [A Release Lounge H264 By Micky22].mp4" to Megaupload.com and e-mailed the URL link for the file to another individual. An infringing copy of this copyrighted work was still present as of October 27, 2011, on a server in the Eastern District of Virginia controlled by the Mega Conspiracy.

I get that you want to defend Dotcom et al. to the end of time, but you should at least admit that direct infringement is also alleged.>>>

So we have Mikey moving the goalposts and changing his argument from there being no such thing as criminal liability for inducing others to infringe, and we have him pretending like there's no "specific *criminal* infringement" alleged in the indictment.

I press Mikey on these two issues:

<<<<Mikey>As Karl explained above, and as we've discussed in detail in the past: you have to show aiding and abetting *CRIMINAL* infringement. They may be able to show support for civil infringement, but that's different and doesn't qualify here.</Mikey>

Dotcom was arguing that there's no such thing as contributory criminal infringement. You agreed in your article: "The main point, as we've discussed before in the context of other cases, is that the DOJ seems to have completely made up a legal theory of contributory copyright inducement."

Are you now saying that there can be indirect liability for criminal infringement under 18 USC 2? Which is it? Does it exist, or does it not exist? Don't conflate the issue of whether such a crime exists with whether such a crime was committed here. I understand that you think it can't be proved here, but I want to know if you agree that it exists. You seem to be contradicting yourself. Can one be criminally liable for inducing another infringe or not?

<Mikey>Nowhere do the charges even attempt to show any specific *criminal* infringement.</Mikey>

That's not true. The indictment has all sorts of information about how they induced criminal infringement and even stuff about the principals engaging in it themselves (like the part I quoted above about "Taken"). How is "Taken" not an example of "specific *criminal* infringement"? Please explain why you think this is not an example of such criminal infringement.>>>

And how does Mikey respond once he's called out on these easily-disproved assertions?

He doesn't. Of course not.

He runs away like he has so many other times. Once called out on his bullshit, he tucks his tail and runs away, too scared to admit that he was wrong.

That's our first installment of Mikey’s Greatest Hits, folks! Stay tuned for many more episodes yet to come!